State v. Garcia-Galvez

• Decision Date: 18 December 2014
• Docket Number: No. 1 CA-CR 14-0215,1 CA-CR 14-0215
• Parties: STATE OF ARIZONA, Appellee, v. LINDA ESMERALDA GARCIA-GALVEZ, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee, v. LINDA ESMERALDA GARCIA-GALVEZ, Appellant.

No. 1 CA-CR 14-0215

ARIZONA COURT OF APPEALS DIVISION ONE

December 18, 2014

NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

Appeal from the Superior Court in Yuma County

No. S1400CR201300909

The Honorable John N. Nelson, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Terry M. Crist, III

Counsel for Appellee

Yuma County Public Defender's Office, Yuma

By Edward F. McGee

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined.

THOMPSON, Judge:

¶1 Linda Esmeralda Garcia-Galvez appeals from her conviction and sentence of one count of taking the identity of another person or entity, a class 4 felony. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On August 20, 2013, Garcia was a passenger aboard a shuttle transport van that was stopped at an immigration checkpoint near Yuma, Arizona. As part of the immigration inspection, U.S. Border Patrol Agent R.P. asked Garcia to state her citizenship. In response, Garcia handed him a U.S. passport card with the name Maria E.R. Agent R.P. repeated his question, but Garcia appeared unable to understand him and again pointed to the passport card. Agent R.P. began questioning Garcia in Spanish, and Garcia stated that her name was Maria E.R., her date of birth was Dec. 8, 1993, and her citizenship was "Arizona." Although the information provided by Garcia matched the information on the passport card, Agent R.P. observed that the photo on the passport card was not that of Garcia. Upon questioning her further, Garcia answered that she grew up in "San Luis," but could not remember her home address or the name of the school she had attended.

¶3 A digital scan of Garcia's fingerprints revealed that her name was Linda Esmeralda Garcia-Galvez; her date of birth was January 10, 1991; she was born in Jalisco, Mexico; and she previously applied for a U.S. Visa. Agent R.P. also observed that the photo in the database associated with Garcia's fingerprints was that of Garcia. Border Patrol Agent S.L. examined the passport card provided by Garcia, and determined that it was an authentic, valid U.S. passport card issued to Maria E.R.

¶4 Garcia was indicted on one count of taking the identity of another, and a jury subsequently found her guilty as charged. The superior court imposed a thirty-six month term of unsupervised probation. Garcia filed a timely notice of appeal. This court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), and 13-4033(A)(1) (Supp. 2013).

DISCUSSION

¶5 Garcia argues that the evidence at trial did not support her conviction for taking the identity of another because the State failed to prove that she possessed or used the passport card without the consent ofthe owner. In reviewing the sufficiency of the evidence at trial, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). This court looks for "substantial evidence" from the entire record from which "reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Cox, 217 Ariz. 353, 357 ¶ 22, 174 P.3d 265, 269 (2007) (citation omitted). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)); see also State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) ("[I]t must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.").

¶6 To prove taking the identity of another, the State must show:

[T]he person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity identifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person's or entity's identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment.

A.R.S. § 13-2008(A) (Supp. 2013) (emphasis added).

¶7 Garcia contends that in order to prove the consent element of the offense, the State was obliged to introduce evidence that Maria E.R. affirmatively stated that she did not consent to Garcia's use of her passport. We disagree. Nonconsent of an owner may be established by direct or circumstantial evidence. See State v. Butler, 82 Ariz. 25, 29, 307 P.2d 916, 919 (1957) (holding circumstantial evidence alone may establish nonconsent of owner in theft cases); see also State v. Burton, 144 Ariz. 248, 252, 697 P.2d 331, 335 (1985) (guilt may be proven by circumstantial evidence alone); State v. Lopez, 163 Ariz. 108, 112, 786 P.2d 959, 963 (1990) (finding circumstantial evidence established nonconsent in sexual assault case despite lack of testimony from victim); State v. Romo, 66 Ariz. 174, 187, 185 P.2d 757, 765 (1947) (stating physical condition of victim may establish lack of consent). Here, the jury heard evidence that Garcia presented Maria E.R.'s U.S.passport card to Agent R.P. as evidence of her citizenship; Garcia stated that her name was Maria E.R. and that her birthday matched that on the passport card; and Garcia falsely claimed to be an Arizona resident. See State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999) (stating that false, misleading, and inconsistent statements made by defendant to police show consciousness of guilt). Given these facts, a reasonable trier of fact could find that Garcia knowingly possessed and used Maria E.R.'s personal information without her consent to unlawfully claim U.S. citizenship.

¶8 We likewise reject Garcia's additional argument that Maria E.R. could have consented to Garcia's use of her passport card for a lawful purpose. While we find substantial circumstantial evidence in the record that Maria E.R. did not consent to Garcia's use of her passport card, we find no evidence in the record that Maria E.R. did, in fact, give her consent to Garcia. See State v. Lopez, 230 Ariz. 15, 17, ¶ 3, 279 P.3d 640, 642 (App. 2012) (stating reversal of a conviction requires a "complete absence of probative facts to support the jury's conclusion) (citations omitted); see also State v. Nash, 143 Ariz. 392, 404, 694 P.2d 222, 234 (1985) (stating that the prosecution does not need to "negate every conceivable hypothesis of innocence when guilt has been established by circumstantial evidence"). Additionally, we note that federal law prohibits any person from willfully and knowingly using, or attempting to use, any passport¹ issued or designed for the use of another, or willfully and knowingly furnishing, disposing of, or delivering a passport to any person for the use of any person other than the person for whose use it was originally issued and designed. 18 U.S.C. § 1544 (2002). Accordingly, Maria E.R.'s passport card is a type of passport that could not lawfully be given to Garcia for her own use as identification. See 22 C.F.R. § 51.3(d) (2007).² Sufficient evidence supported the jury's verdict.

Jury Instructions

¶9 Garcia next contends that the court wrongfully commented on the evidence by instructing the jury that it was not possible for a person to consent to an unlawful act. We review the trial court's decision to give a jury instruction for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). We review the legal adequacy of an instruction de novo. State v. Martinez, 218 Ariz. 421, 432, ¶ 49, 189 P.3d 348, 359 (2008). We will not reverse a criminal conviction based on instructional error unless we find that the instructions, taken as a whole, may have misled the jury. See State v. Johnson, 155 Ariz. 23, 26, 745 P.2d 81, 84 (1987); see also Catchings v. City of Glendale, 154 Ariz. 420, 424, 743 P.2d 400, 404 (App. 1987) (noting that a jury verdict will not be overturned because of an improper instruction unless there is substantial doubt as to whether the jury was properly guided in its deliberations).

¶10 The jury submitted the following question during deliberations: "Under the page of 'Taking the Identity of a Person or Entity' . . . is 'Without Consent' need to be proven to meet this law [sic]." Over Garcia's objection, the trial court provided a jury instruction which stated:

'Without the consent of that person' as found in the instruction is not defined in the statute.

The consent of a person for purposes of committing an unlawful act is not a lawful...